# Amicus Curiae Brief — Delaware River Port Authority v. Fraternal Order of Police

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0980%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1275

## Text

a

6 | Supreme Court. US.

No. 99-1758 | FILED

In the Supreme Court of the United States
OCTOBER TERM, 1999 CLERK !

DELAWARE RIVER PORT AUTHORITY, ;

Petitioner,

al

FRATERNAL ORDER OF POLICE,
PENN-JERSEY LODGE 30 and JOSEPH VENA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

BRIEF OF AMICI CURIAE THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY and 7HE WATERFRONT
COMMISSION OF NEW YORK HARBOR IN
SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

HUGH H. WELSH
Counsel of Record
Attorney for Amicus Curiae
THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
One World Trade Center, 67th Floor
New York, New York 10048
(212) 435-6915

DAVID B. GREENFIELD
Counsel of Record

Attorney for Amicus Curiae
THE WATERFRONT COMMISSION _

OF NEW YORK HARBOR
On the Brief: 39 Broadway
HUGH H. WELSH New York, New York 10006
ARTHUR P. BERG (212) 742-9280
ARNOLD D. KOLIKOFF
Virgil Mountain, Inc. (212) 779-4046 L5236

TABLE OF CONTENTS

Page
PE HRM aileei css d a dacnsksonasbasledadebedncdecesehscoteinckes iii
ON Se SIE I sista thcstdesdnserssconnsisbsccctacbincksdalesies 1
Pe NID neti ici esi... 3
I ee I ati ctenishenhsinconsasbashesaiianccabssdaschdaieitnsdnasy 3
Reasons for Granting the Petition ..............0.c:cccccccecesssseseeeeees +
I. The Determination Of The Appellate Division
That An Interstate Compact Agency May Be
Regulated By The Legislation Of One Parent State
In The Absence Of Concurrence By All Other
Parent States Is Contrary To The Contractual
Nature Of Interstate Compact Agencies..................... sities 4
A. Interstate Compacts Are Contractual In Nature
And Interstate Compact Agencies Should Not
Be Regulated By The Legislation Of One
Parent State In The Absence Of Concurrence
Tt Ee INE SUID IIa os iccciccasascnsssesninsnsancuresiicesnans 5
B. The Compact Legislation Governing Petitioner
And Amici Curiae Require Concurrent
Legislation Of The Respective Parent States To
Affect Petitioner And Amici Curiae ............:cccccccecce000e- 6
Fa RE I isis acnisiannchontsascseicsavecionnisaneiins 6
2. Port Authority Legislation ..............0ccccccesseeeees 8

3. Waterfront Commission Legislation.................. 11

TABLE OF CONTENTS
Page

Il. The Determination Of The Appellate Division
That An Interstate Compact Agency May Be
Regulated By The Legislation Of One Parent State
In The Absence Of Mutual Concurrence By All
Parent States Is Contrary To The Law Of New
Jersey's Partner States In Creating Petitioner And
The Ashe’ Cathe .occiicssnsnssssssniipaianniadimididadianakaicectes 13

Ill. Review Of The Appellate Division Decision Is
Necessary To Avoid Confusion As To The State
Law Applicable To Interstate Compact Agencies
Because Of Conflicts Among The Courts Of The
States Who Are Party To The Compacts Creating
The DRPA And The Amici Curiae With Respect
To Whether Mutual Concurrence Is Necessary For
Interstate Compact Agencies To Be Regulated By
Generally Applicable State Law...............cccccceseeeeeeeeeeees 15 '

Comat ....cccccncenecisacsdaissunsiaueeeaeaen ee 20

TABLE OF AUTHORITIES

Page
Cases:
Cuyler v. Adams, 449 U.S. 433 (1981)......::cseseeseeseeeeeeees 17
Delaware River Joint Toll Bridge Comm'n v. Colburn, 310
U.S. BE AIEEE sis sinhasisenntenicsnbannanddnniesdsnvehnoesneniiasessaiucanecs 17
Dezaio v. Port Authority, 205 F.3d 62 (2d Cir. 2000)......... 17
Hess v. Port Authority Trans-Hudson Corporation, 513
ye IE wid ictncscinncrdatiibiasarriendaeninennssnanssneecd 5, 9-10, 17

Int'l Union of Operating Engineers, Local 68 v. Delaware
River and Bay Authority, 147 N.J. 433, 688 A.2d
569, cert. denied, 522 U.S. 861 (1997)......... 17, 18 n.5, 19

King v. Port Authority, 909 F. Supp. 938 (D.N.J. 1995),
aff'd, 106 F.3d 385 (1996) .............scescersseceseesees 18, 18 n.5

Malverty v. Waterfront Comm’n, 71 N.Y.2d 977, 529
N.Y.S.2d 67, 524 N.E.2d 421 (1988)..............ccsssceesees 14

Nardi v. Delaware River Port Authority, 88 Pa. Commw.
BAe DOD (ITI) asus snsnscnscnscescccscssecnssersccness 14-15

Pilla v. Delaware River Port Authority, 1999 WL 345918
(E.D. Pa. May 7, 1999) ...........ssccccssssssssrscssscesssceeesecnsees 17

State ex rel. Dyer v. Sims, 341 U.S. 22 (195))........ 4,5, 13, 18

TABLE OF AUTHORITIES

Page
Statutes:
United States
US: Seek £8 Oi ea 1
G7 SP, UR. IE Crisis setssniicnnsth acsaicessinticeiabentindaieanaaaie 1
New Jersey
N.J. Stat. Amn. §32:1-1 (West 1990)............ccsccssssssssssssenss 1,8
EN .J. Semk. Amar. GSB0-D COV TOI osssviccccsscsssiscicssccciccccsacess 1
NJ. Stat. Amun. $52:1-4 (West 1990).......ccceccesecsssssessccccsssseses 9
N.J. Stat. Ann. §32:1-8 (West 1990).................ccsssssssssscesssees 9
-N.J. Stat. Ann. §32:1-35.27a (West 1990)...........ccccesesseees 10
N.J. Stat. Ann. §32:1-35.36 (West 1990)...........ccscccccssssscees 10
N.J. Stat. Ann. §32:1-35.61 (West 1990)............eeeeeees 10
N.J. Stat. Ann. §32:1-35.68 (West 1990)............ cece eeeee 10
N.J. Stat. Ann. §32:1-35.93 (West 1990).............cccccceseees 10
N.J. Stat. Ann. §32:1-119.3 (West 1990)..................cccsseeee 10
N.J. Stat. Ann. §32:1-140 (West 1990)..................ccccsesseeees 11
N.J. Stat. Ann. §32:1-140.7 (West 1990)............cceeeceeeeeees 10

iv

TABLE OF AUTHORITIES

Page
Statutes:
N.J. Stat. Ann. §32:1-142 (West 1990).........:cceescsesseeeeees 10
N.J. Stat. Ann. §32:1-146 (West 1990)...........ccssccceseereeseees 10
N.J. Stat. Ann. §32:1-154.17 (West 1990)...........eeeeeeeeeeeee 11
N.J. Stat. Ann. §32:1-154.24 (West 1990).......... ee eeeeeeeees 11
N.J. Stat. Ann. §32:1-156 (West 1990)..............ccccccccssossees 11
N.J. Stat. Ann. §32:1-168 (West 1990).................ccsccccsseess 11
N.J. Stat. Ann. §32:1-174 (West 1990)..........cececcseseeeeeeees 11
N.J. Stat. Ann. §32:1-176 (West 1990)..............ssccssseesssees 11
N.J. Stat. Ann. §32:3-1 (West 1990)...........ccccccceseeeees 6, 7, 8
N.J. Stat. Ann. §32:3-2 (West Supp. 1999) .......... cesses 6, 7
N.J. Stat. Ann. §32:3-3 (West Supp. 1999) ..........cccscsceeereees 7
NJ. Stat. Ann. §32:3-4 (West Supp. 1999) ..........ccccssseceeeees 4
N.J. Stat. Ann. §32:3-4 to -5, -13, -13.23 (West
DOD. RODD a vccevisinisacssanscnniansnanaanonsasiemansnanntimamessaiali 7
N.J. Stat. Ann. §32:3-5(e) (West Supp. 1999)............ eee 7
N.J. Stat. Ann. §32:3-13.41, -13.49 (West 1990)................-. 8
N.J. Stat. Ann. §32:4-6 (West 1990 & Supp. 1999).............. 8
N.J. Stat. Ann. §32:4-9 (West 1990)................ccscccccscsoccsccsees 8

Vv

TABLE OF AUTHORITIES

Page
Statutes:
N.J. Stat. Ann. §32:23-2 to -4 (West 1990)... 2, 11
N.J. Stat. Ann. §32:23-6 (West 1990)............. 2,2 n.2, 11, 12
N.J. Stat. Ann. §32:23-8 (West 1990)... eeeeeeee 11
N.J. Stat. Ann. §32:23-9 (West 1990).............ccceeeeeeee eee 11
N.J. Stat. Ann. §32:23-11 (West 1990)... 11
N.J. Stat. Ann. §32:23-23.1 (West Supp. 1999)... 12
N.J. Stat. Ann. §32:23-70 (West 1990)... ccceccesseeeeeees 11
N.J. Stat. Ann. §32:23-75 (West 1990)...........cccsssccesseeeeees 12
N.J. Stat. Ann. §32:23-77 (West 1990).............ccccccssessseeeees 12
NJ. Stat. Ann. §32:23-78 (West 1990) .ccccccccsssscocssseee ie
NJ. Stat. Ann. §32:23-84 (West 1990) .ccccccccccccsccsccesesccecece 12
N.J. Stat. Ann. §32:23-85 to -86 (West 1990) ................008 12
N.J. Stat. Ann. §32:23-104 (West 1990)... eeecseeeees 12
N.J. Stat. Ann. §32:23-105.1 (West Supp. 1998) ............... 12
N.J. Stat. Ann. §32:23-108 (West 1990)...............ccccsseeees 12
N.J. Stat. Ann. §32:23-113 (West 1990)...............ccccceeeeeeees 12
N.J. Stat. Ann. §32:23-114 (West 1990 & Supp.
LDGD)., ..cnsccsoansenstencienntpabeihinntibaalsadenennialiauaitasnmta 12

TABLE OF AUTHORITIES

Page
Statutes:
N.J. Stat. Ann. §32:23-117 (West 1990) .....ccccccccccccccsceesceces 12
32 N.J. Stat. Ann., Ch. 8 (West 1990).......cccccccccccceceeces 16 n.4
32 N.J. Stat. Ann., Ch. 11E (West 1990) ......cccccccccccceee. 16 n.4
32 N.J. Stat. Ann., Ch. 14 (West 1990).......ccccccccccsccceee. 16 n.4
32 N.J. Stat. Ann., Ch. 19 (West 1990).......c.ccccccsccccseee. 16 n.4
32 N.J. Stat. Ann., Ch. 20 (West 1990)...0....ccccccccccccseee, 16 n.4
32 N.J. Stat. Ann., Ch. 21 (West 1990).......ccccccccccececes, 16 n.4
32 N.J. Stat. Ann., Ch. 22B (West 1990) .......ccccccccccscee. 16 n.4
32 N.J. Stat. Ann., Ch. 27 (West 1990)..0....c.ccccccccsccceees 16 n4
32 N.J. Stat. Ann., Ch. 29 (West 1990).......c.cccccccsssesee. 16 n.4
ee es CI Et SO iki i ee 1
me as MA CN FIR init ee 1
New York
N.Y. Unconsol. L. §6401 (McKinney 1979).............cccsc00-. 1,8
N.Y. Unconsol. L. §6403 (McKinney 1979) .........ccccccssceseesee. 1

Page
Statutes:
N.Y. Unconsol. L. §6404 (McKinney 1979)..........cccceseeeeees 9
N.Y. Unconsol. L. §6408 (McKinney 1979) ........sssccsssssesseeee 9
N.Y. Unconsol. L. §6525 (McKinney 1979).........cccccceseeees 10
N.Y. Unconsol. L. §6601 (McKinney 1979).............:ccceeees 10
N.Y. Unconsol. L. §6631 (McKinney Supp. 1999)............. 10
N.Y. Unconsol. L. §6647 (McKinney 1979)............ccccceeeees 10
N.Y. Unconsol. L. §6678 (McKinney 1979) .....c.csssscsseeeeee 10
N.Y. Unconsol. L. §6817 (McKinney 1979)... 11
N.Y. Unconsol. L. §6837 (McKinney 1979)............::ccceeeees 11
N.Y. Unconsol. L. §6932 (McKinney 1979).........ccceeceeeeee 11
N.Y. Unconsol. L. §6973 (McKinney 1979)..........:ccccceeeee 10
N.Y. Unconsol. L. §7058 (McKinney 1979)...........cccceeeees 10
N.Y. Unconsol. L. §7112 (McKinney 1979)... 11
N.Y. Unconsol. L. §7136 (McKinney 1974)... ccs 11
N.Y. Unconsol. L. §7142 (McKinney Supp. 1999)............. 11
N.Y. Unconsol. L. §7192 (McKinney 1979)............::cccee 10
a

N.Y. Unconsol. L. §§9802-3 (McKinney 1979)............... 2, 11

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

Statutes:
N.Y. Unconsol. L. §9806 (McKinney 1979).............0:0000. 2, 11
N.Y. Unconsol. L. §9811 (McKinney 1979)...........ccccccee 11
N.Y. Unconsol. L. §9870 (McKinney 1979).............ccccc0000+. 11
N.Y. Unconsol. L. §9907 (McKinney 1979)..............::000000- 12
N.Y. Unconsol. L. §9920 (McKinney Supp. 1999)............. 12
N.Y. Unconsol. L. §9922 (McKinney Supp. 1999)............. 12
N.Y. Unconsol. L. §9924 (McKinney Supp. 1999)............. 12
N.Y. Unconsol. L. §9925 (McKinney Supp. 1999)............. 13
N.Y. Unconsol. L. §9931 (McKinney 1979).............:c0000004 12
N.Y. Unconsol. L. §9937 (McKinney 1979)..............::c000080 12
POE Ree MN Ms Wi sdiecdbhsciesansnanscctadblecinicsilatnsiinasosubiadaes 1
ae es ae MD NRL cians ininscincidsnstiiniinnsnabedtidaninincishinudlete 2
Pennsylvania
Pa. Stat. Ann. tit. 36, §3503, Preamble (Supp.

Aha scincbiaiinbasaniientinsecisinteideysabianbiiashinintianienmantaia 6, 7,8
Pa. Stat. Ann. tit. 36, §3503, Art I (Supp. 2000)................. 6
Pa. Stat. Ann. tit. 36, §3503, Art II (Supp. 2000)................ 7

ix

TABLE OF AUTHORITIES

Page
Statutes:
Pa. Stat. Ann. tit. 36, §3503, Art III (Supp. 2000)........... 4,7
Pa. Stat. Ann. tit. 36, §3503, Art IV (Supp. 2000)............... 7
Pa. Stat. Ann. tit. 36, §3503-3503.9 (Supp. 2000)............... 8
Pa. Stat. Ann. tit. 36, §3504.1-3504.1a (Supp.
SIND iicaianthciancmsshielichaedattaiaktiinteannaieiligieieadlcgpepieniemiinas 8

INTEREST OF THE AMICI CURIAE'

The Port Authority of New York and New Jersey (“the Port
Authority”) is a body corporate and politic created in 1921 by
a Congressionally-consented-to compact between the States of
New York and New Jersey, pursuant to Article I, Section 10 of
the United States Constitution, to develop public transportation,
terminal, and other facilities of commerce within the Statutorily
defined Port District. 42 U.S. Stat. 174 (1921), consenting to
1921 N.J. Laws, Ch. 151 (codified at N.J. Stat. Ann. §§32:1-1
to -24 (West 1998 & Supp. 1998)) and 1921 N.Y. Laws, Ch.
154. (codified at N.Y. Unconsol. k. §§6401-6423 (McKinney
1979 & Supp. 1998)).

The Port District comprises an area of approximately 1,500
Square miles centering around New York harbor. See, N.J. Stat.
Ann. §32:1-3 (West 1990); N.Y. Unconsol. L. §§6403
(McKinney 1979). At the present time, pursuant to the 1921
Compact, and subsequent bi-State legislation, the Port Authority
Owns and operates thirty three (33) such facilities, including two
tunnels and four bridges between the States of New York and
New Jersey, four airports, a heliport, the World Trade Center,
and six marine terminals.

The Waterfront Commission of New York Harbor (“the
Waterfront Commission”) is a body corporate and politic
created in 1953 by a Congressionally-consented-to compact
between the States of New York and New Jersey, pursuant to
Article I, Section 10 of United States Constitution. 67 U.S. Stat.
541 (1953), consenting to 1953 N.J. Laws, Ch. 202, as amended

lin compliance with Rule 37.2(a), the Court is advised that the parties
herein have consented to the submission of a brief amici curiae by The Port
Authority of New York and New Jersey and The Waterfront Commission of
New York Harbor as set forth in letters on file with the Court.

In compliance with Rule 37.6, the Court is advised that this brief amici
curiae was authored wholly by counsel whose names are set forth hereon, and
no monetary contribution was received from any other party in connection
with the preparation or submission thereof.

by Ch.203 (codified at N.J. Stat. Ann. §§32:23-1 et seg. (West
1990 & Supp. 1998)), and 1953 N.Y. Laws Ch. 882, as
amended by Ch. 883 (codified at N.Y. Unconsol. L. §§9801 et
seq. (McKinney 1979 & Supp. 1998)). The Waterfront
Commission was created for the purpose of eliminating
racketeering and other criminal, corrupt and evil conditions on
the waterfront within the Port District created by the Port
Authority legislation. N.J. Stat. Ann. §§32:23-2 to -4, -6° (West
1990); N.Y. Unconsol. L. §§9802-3, 9806 (McKinney 1979).

The Port Authority and the Waterfront Commission
respectfully urge the Court to grant the Petition for Certiorari of
the D«laware River Port Authority (“DRPA”) herein to review a
decision of the New Jersey Superior Court, Appellate Division,
because that decision ignores the carefully considered methods
set forth in the DRPA Compact for imposing duties and
obligations on that agency, establishes a precedent that conflicts
with the decisions of other states and is harmful to other
Compact Clause entities by imposing duties and obligations by
inference. The rule of decision applied by the Appellate
Division decision is inconsistent with the nature of an interstate
compact agency, whose conduct should be regulated only when
all parent states express an intent to do so. Moreover, the
decision creates confusion as to the rule of decision to be
followed to determine the effect of state legislation on interstate
Compact Clause agencies. :

2 Reference is made to the first version of N.J. Stat. Ann. §32:23-6 (West
1990). New Jersey Statutes Annotated contain two versions of NJ. Stat. Ann.
§32:23-6 (West 1990) and other sections of Waterfront Commission
legislation because New York and New Jersey adopted amendatory legislation
in 1970 relating to airports, which provided that such legislation would not
be effective if not approved by Congress, and Congress has not approved such
legislation. See note under NJ. Stat. Ann. §32:23-6 (West 1990).
McKinney's Consolidated Laws of New York Annotated presents the
Waterfront Commission legislation incorporating the 1970 amendments.
Accordingly, hereinafter, unless otherwise specified, citation is made to the
first version of a section in New Jersey Statutes Annotated if there are two
versions of a section. No parallel citation will be made of a corresponding
section in McKinney's Consolidated Laws of New York Annotated if it is set
forth therein as amended by the 1970 legislation.

2

As Compact Clause agencies formed by New Jersey and
New York, the Amici Curiae have an interest in the resolution of
these issues by this Court in a decision that recognizes the
contractual nature of interstate compact agencies, and removes
confusion as to the applicability of state legislation to them in
the absence of express mutual agreement of the parent states
providing for such applicability.

STATEMENT OF THE CASE

Amici Curiae adopt the statement of the case as set forth in
the Petition submitted by the DRPA.

SUMMARY OF ARGUMENT

This Court should grant the Petition for Writ of Certiorari to
the Appellate Division of the New Jersey Superior Court
because this case presents an issue of federal law under the
United States.Constitution that has national importance: Whether
agencies created by the States pursuant to agreements made
pursuant to the Compact Clause may be regulated by the law of
one state in absence of mutual concurrence by the other parent
State or states that the Compact Clause agency may be so
regulated. The Appellate Division has ruled that a Compact
Clause agency may be regulated by the law of one state in the
absence of mutual concurrence by the other parent state or
States. In so ruling, the Appellate Division has ignored the
contractual nature of Compact Clause agencies, and their
purpose of addressing regional problems without regard to state
boundaries, free from individual state control. Thus, the
Appellate Division decision, if unchallenged, will reduce the
effectiveness of Compact Clause agencies within New Jersey,
and elsewhere if the decision is followed as precedent.

In addition, review by this Court of the decision of the
Appellate Division is necessary to resolve confusion as to law
applicable to interstate compact agencies. First, the rule to
determine which state legislation applies to a New Jersey
interstate compact agency varies among New Jersey and the

3

other States who are party to the compacts creating the DRPA
and the Amici Curiae. Second, the rule followed by the
Appellate Division itself engenders confusion as to the law
applicable to interstate compact agencies.

REASONS FOR GRANTING THE PETITION

I. THE DETERMINATION OF THE APPELLATE
DIVISION THAT AN INTERSTATE COMPACT
AGENCY MAY BE REGULATED BY THE
LEGISLATION OF ONE PARENT STATE IN THE
ABSENCE OF CONCURRENCE BY ALL OTHER
PARENT STATES IS CONTRARY TO THE
CONTRACTUAL NATURE OF INTERSTATE
COMPACT AGENCIES.

This case presents an issue of federal law under the United
States Constitution that has national importance since it
concerns the circumstances under which a Compact Clause
agency may be regulated by the law of one compacting State in
the absence of concurrence by the other State or States who are
party to the compact. The issue is one which is “the function
and duty of the Supreme Court of the Nation” to determine,
State ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951), since it
“determine[s] the nature and scope of obligations as between
States.” /d. ;

The Appellate Division, has ruled that, despite provisions in
the DRPA Compact granting authority to its Commissioners to
control terms and conditions of the DRPA’s employees, subject
to gubernatorial veto, N.J. Stat. Ann. §32:3-4 (West Supp.
1999); Pa. Stat. Ann. tit. 36, §3503, Art. II] (Supp. 2000), the
DRPA must submit labor disputes to binding arbitration under
New Jersey law, even though there has been no mutual
expression of intent to do so by both New Jersey and
Pennsylvania, New Jersey’s partner in creating the DRPA. This
determination impacts upon the essential nature of Compact
Clause entities, as determined by this Court. As set forth more
fully herein, this Court has characterized interstate compacts as

4

iii iMate

binding contracts, and interstate compact agencies as entities
created to address issues that transcend state boundaries which
are not subject to the unilateral control of one state.

It is respectfully submitted that this Court should review the
Appellate Division decision because of the decision’s impact on
the contractual nature of the DRPA Compact and _ interstate
compacts in general, including those creating the Amici Curiae.

A. INTERSTATE COMPACTS ARE CONTRAC-
TUAL IN NATURE AND INTERSTATE
COMPACT AGENCIES SHOULD NOT BE
REGULATED BY THE LEGISLATION OF ONE
PARENT STATE IN THE ABSENCE OF
CONCURRENCE BY ALL OTHER PARENT
STATES.

In Hess v. Port Authority Trans-Hudson Corporation, 513
U.S. 30 (1994), this Court recognized that bi-state entities are
created by interstate compact “to address interests and
problems that do not coincide nicely either with the national
boundaries or with State lines - interests that may be badly
Served or not served at all by the ordinary channels of National
or State political action.” /d., at 40 (internal quotation marks
and citation omitted). A hallmark of an_ interstate compact
agency is that it is not subject to the unilateral contro! of any of
its parent states. “It requires no elaborate argument to reject the
Suggestion that an agreement solemnly entered into between
States . . . can be unilaterally nullified, or given final meaning
by an organ of one of the contracting States.” State ex rel. Dyer
v. Sims, supra, at 28. “[B]i-state agencies created by compact . .
-are not subject to the unilateral control of any one of the States
that compose the federal system.” Hess v. Port Authority Trans-
Hudson Corporation, 513 U.S. at 42. “[N]o one state alone can
control the course of a Compact Clause entity.” /d., at 47. By
creating an interstate compact entity, each compacting state
shifts a part of its authority to the jointly created agency. /d., at
42.

In contrast, in the instant case, the Appellate Division did not
respect the contractual nature of the DRPA compact. The
Appellate Division did not base its decision on a finding that the
New Jersey and Pennsylvania had expressed a mutual intent to
alter the relationship between the DRPA and its employees.
Rather, the court relied on each state’s respective policy as tu
government labor relations in general. Appendix, 14a.° Neither
State statute relied upon refers to the DRPA. Accordingly, it
cannot be said that these two laws purport to amend the DRPA’s
Compact, or overturn or preempt the Compact provision
entrusting the DRPA Commissioners with fixing and
determining the “qualifications, duties and compensation” of
DRPA employees subject to gubernatorial review

B. THE COMPACT LEGISLATION GOVERNING
PETITIONER AND AMICI CURIAE REQUIRE
CONCURRENT LEGISLATION OF THE
RESPECTIVE PARENT STATES TO AFFECT
PETITIONER AND AMICI CURIAE.

The decision of the Appellate Division is inconsistent with
the interstate compacts creating DRPA and the Amici Curiae,
and subsequent legislation of the parent states imposing duties
and obligations on those entities, which require legislation by
both respective parent states for the legislation to be effective.

1. DRPA LEGISLATION

The DRPA is a typical interstate compact agency. The
DRPA was created by interstate compact between New Jersey
and Pennsylvania to develop, operate and maintain interstate
transportation and port facilities that serve the two States. NJ.
Stat. Ann. §32:3-1, -2 (West 1990 & Supp. 1999), Pa. Stat.
Ann. tit. 36, §3503, Preamble, Art. I (Supp. 2000), to effect the
two States’ mutual interest in “development of the Delaware
river from Camden and Philadelphia to the sea,” through “a

3 References to “Appendix” followed by page numbers are to, the
Appendix to the Petition for Certiorari.

6

Single agency of both states empowered to further the interests
of both states.” N.J. Stat. Ann. §32:3-1 (West 1990); Pa. Stat.
Ann. tit. 36, §3503, Preamble (Supp. 2000).

To facilitate the DRPA’s interstate mission, the DRPA
Compact and bi-state implementing legislation set forth detailed
provisions for bi-state governance of the DRPA. The Compact
and the implementing legislation do not provide for the
imposition of obligations by only one of the compact states.
The DRPA is controlled by sixteen Commissioners, eight from
New Jersey and eight from Pennsylvania. N.J. Stat. Ann. §32:3-
3 (West Supp. 1999); Pa. Stat. Ann. tit. 36, §3503, Art. II
(Supp. 2000). The Commissioners “have charge of the
commission’s property and affairs . . . , but no action of the
Commissioners shall be binding unless a majority of the
members of the commission from Pennsylvania and a majority
of the members of the commission from New Jersey shall vote
in favor thereof.” N.J. Stat. Ann. §32: 3-4 (West Supp. 1999);
Pa. Stat. Ann. tit. 36, §3503, Art. III (Supp. 2000). The DRPA
Commissioners are specifically granted the power to “fix and
determine” the DRPA’s employees’ “qualifications, duties and
compensation.” N.J. Stat. Ann. §32:3-5(e) (West Supp. 1999);
Pa. Stat. Ann. tit. 36, §3503, Art. IV, para. (e) (Supp. 2000).
The Compact provides that the Governor of the State that
appoints a Commissioner may be granted the authority to in
effect, “cancel” the Commissioner’s vote. N.J. Stat. Ann.
§32:3-3 (West 1990); Pa. Stat. Ann. tit. 36, §3503, Art. II
(Supp. 2000). No provision of the Compact allows the
legislature of either State to impose additional duties or
obligations on the DRPA, but “additional powers” may granted
to the DRPA by concurrent legislation of the two States. N.J.
Stat. Ann. §32:3-5 (West Supp. 1998); Pa. Stat. Ann. tit. 36,
§3503, Art. IV, follow’g para. (q) (Supp. 2000).

The DRPA Compact and amendatory and supplementary
legislation are replete with references to the necessity of
concurrent legislation by the sister state before any law
imposing duties or obligations on the DRPA is effective or
operable. See, N.J. Stat. Ann. §32:3-2 to -5, -13, -13.23 (West

7

Supp. 1999) (historical notes); N.J. Stat. Ann. §32:3-13.41,
-13.49 (West 1990); NJ. Stat. Ann. §32:4-6 (West 1990 &
Supp. 1999) (historical note); N.J. Stat. Ann. §32:4-9 (West
1990); Pa. Stat. Ann. tit. 36, §3503-3503.9 (Supp. 2000)
(historical notes); Pa. Stat. Ann. tit. 36, §3504.1-3504.1a (Supp.
2000) (historical notes).

The Appellate Division’s determination ignores the subtle
balance of power between the executive and legislative branches
of state government embodied in the DRPA Compact, and thus
ignores the important public policy of insulating interstate
compact agencies from unilateral state legislation inconsistent
with the agency’s independence from single state legislative
control. Indeed, as set forth in the DRPA Compact, protection
from unilateral state control is the rationale for creating an
interstate compact agency to be able to competently address and
solve problems of a regional nature which cross state lines. N.J.
Stat. Ann. §32:3-1 (West 1990); Pa. Stat. Ann. tit. 36, §3503,
Preamble (Supp. 2000).

2. PORT AUTHORITY LEGISLATION

The Amici Curiae similarly were created to serve the mutual
interests of the compacting States of New Jersey and New York
to address common problems.

The Port Authority was created in recognition of the fact
that “the territory in and around the port has become
commercially one center or district.” N.J. Stat. Ann. §32:1-1
(West 1990); N.Y. Unconsol. L. §6401 (McKinney 1979).

A review of the Port Authority Compact demonstrates that
the legislatures of the two States intended that the Port Authority
be free from obligations or duties imposed by unilateral state
legislation of either state and subject only to concurrent
legislation. For instance, Article Ill provides that the Port
Authority

shall be a body corporate and politic, having the powers
of jurisdiction hereinafter enumerated, and such other
and additional powers as shall be conferred upon it by
the Legislature of either State concurred in by the
Legislature of the other or by Act or Acts of Congress,
as hereinafter provided.

N.J. Stat. Ann. §32:1-4 (West 1990); N.Y. Unconsol. §6404
(McKinney 1979) (emphasis added).

Similarly, Article VII of the Compact provides in pertinent
part:

The port authority shall have such additional powers and
duties as may hereafter be delegated to or imposed upon
it from time to time by the action of the legislature of
either state concurred in by the legislature of the other.

N.J. Stat. Ann. §32:1-8 (West 1990); N.Y. Unconsol. §6408
(McKinney 1979) (emphasis added).

As is the case of the DRPA, state control over the Port
Authority is accomplished through mechanisms expressly set
forth in the Compact itself, not through unilaterally enacted
single ‘state legislation. As this Court stated in Hess:

Twelve Commissioners, six selected by each State,
govern the Port Authority. See N.J. Stat. Ann. §§32:1-5,
32:12-3 (West 1990); N.Y. Unconsol. Laws §6405
(McKinney 1979); 1930 N.Y. Laws, ch. 422, §6. Each
State may remove, for cause, the commissioners it
appoints. See NJ. Stat. Ann.§§32:1-5, 32:12-5 (West
1990); N.Y. Unconsol. Laws, §6405 (McKinney 1979);
1930 N.Y. Laws, ch. 422, §4. Consonant with the
Authority’s geographic domain, four of New York’s six
Commissioners must be resident voters of New York
City, and four of New Jersey’s must be resident voters of
the New Jersey portion of the Port of New York District.

See NJ. Stat. Ann. §+ (West 1990); N.Y. Unconsol.
Laws §6405 (McKinney 1979).

The Governor of each State may veto actions of the |
Port Authority Commissioners from that State,... . See
N.J. Stat. Ann. §§32:1-17, 32:1-35.61, 32:2-6 to 32:2-9
(West 1990); N.Y. Unconsol. Laws §§6417, 6612, 7151-
7154 (McKinney 1979). Acting jointly, the state
legislatures may augment the powers and responsibilities
of the Port Authority, see N.J. Stat. Ann. §32:1-8 (West
1990); N.Y. Unconsol. Laws §6408 (McKinney 1979),
and specify the purposes for which the Port Authority’s
surplus revenues are used. See N.J. Stat. Ann. §32:1-142
(West 1990); N.Y. Unconsol. Laws §7002 (McKinney
1979).

502 U.S. at 36 (emphasis added).

Again, as is the case with the DRPA, the Port Authority
Compact and its supplements and amendments are replete with
references to the necessity of concurrent legislation by the sister
state before any law imposing duties or obligations on the Port
Authority is effective. The laws of New York and New Jersey
imposing obligations on the Port Authority are, by their express
terms, only effective upon the enactment of identical legislation
by the sister state. See, N.J. Stat. Ann. §32:1-35.17 (West 1990);
N.Y. Unconsol. L. §6647 (McKinney 1979); N.J. Stat. Ann.
§32:1-35.27a (West 1990); N.Y. Unconsol. L. $6631
(McKinney Supp. 1999) (historical note); N.J. Stat. Ann.
§32:1-35.36 (West 1990); N.Y. Unconsol. L. §6678 (McKinney
1979); NJ. Stat. Ann. §32:1-35.68 (West 1990); N.Y.
Unconsol. L. §6601 (McKinney 1979) (historical note); N.J.
Stat.-Ann. §32:1-35.93 (West 1990); N.Y. Unconsol. L. §7192
(McKinney 1979); N.J. Stat. Ann. §32:1-119.3 (West 1990);
N.Y. Unconsol. L. §6525 (McKinney 1979) (historical note};
N.J. Stat. Ann. §32:1-140 (West 1990); N.Y. Unconsol. L.
§6525 (McKinney 1979); N.J. Stat. Ann. §32:1-140.7 (West
1990); N.Y. Unconsol. L. §7058 (McKinney 1979); NJ. Stat.
Ann. §32:1-146 (West 1990); N.Y. Unconsol. L. §6973

10

(McKinney 1979); N.J. Stat. Ann. §32:1-154.17 (West 1990);
N.Y. Unconsol. L. §6817 (McKinney 1979); N.J. Stat. Ann.
§32:1-154.24 (West 1990); N.Y. Unconsol. L. §6837
(McKinney 1979); N.J. Stat. Ann. §32:1-156 (West 1990); N.Y.
Unconsol. L. §6932 (McKinney 1979); N.J. Stat. Ann. §32:1-
168 (West 1990); N.Y. Unconsol. L. §7112 (McKinney 1979);
N.J. Stat. Ann. §32:1-174 (West 1990); N.Y. Unconsol. L.
§7136 (McKinney 1974); N.J. Stat. Ann. §32:1-176 (West
1990); N.Y. Unconsol. L. §7142 (McKinney Supp. 1999).

3. WATERFRONT COMMISSION
LEGISLATION

The nature and structure of the Waterfront Commission is
similar in material respects to the DRPA and the Port Authority.
The Waterfront Commission was created by interstate compact
for the purpose of eliminating racketeering and other criminal,
corrupt and evil conditions on the waterfront within the Port
District created by the Port Authority legislation. N.J. Stat. Ann.
§32:23-2 to -4, -6 (West 1990); N.Y. Unconsol. L. §§9802-3,
9886 (McKinney 1979). Amendments and supplements to the
Waterfront Commission Compact may be adopted only by the
action of the Legislature of either State concurred in by the
Legislature of the other. N.J. Stat. Ann. §32:23-70 (West 1990);
N.Y. Unconsol. L. §9870 (McKinney 1979). The legislation
provides that the Waterfront Commission shall enjoy the powers
and have the duties imposed on it by the creating legislation and
“such additional powers and duties as may hereafter be
delegated to and imposed upon it from time to time by the
action of the Legislature of either State concurred in by the
Legislature of the other.” N.J. Stat. Ann. §32:23-11 (West
1990); N.Y. Unconsol. L. §9811 (McKinney 1979) (emphasis
added). The Waterfront Commission consists of two members.
The governor of each state appoints a single Commissioner for
a three-year term with the advice and consent of the respective
State Senate. NJ. Stat. Ann. §32:23-8 (West 1990). The
Waterfront Commission may act only by unanimous vote, ie.,
by the votes of the Commissioners from both States.. N.J. Stat.
Ann. §32:23-9 (West 1990).

1]

Changes in the powers and duties of the Waterfront
Commission have been attempted or accomplished only
through concurrent legislation of the two states. In creating the :

:

Waterfront Commission, each state provided that only a single
State agency was created if the other state did not adopt l
concurring legislation creating a bi-state agency. N.J. Stat. Ann. H
§32:23-78 (West 1990); N.Y. Unconsol. L. §9931 (McKinney
1979). A 1970 effort of the two states to expand the jurisdiction
of the Waterfront Commission to include air freight activity by
amendatory legislation did not become effective because the
legislation provided that it would not be effective if not
approved by Congress, and Congress has not approved such
legislation. Significantly, the legislation adopted by each state
also provided that legislation would not be effective if not
adopted by the other state. See note under N.J. Stat. Ann.
§32:23-6 (West 1990) (second version). The states have
affected the power of the Waterfront Commission by other, less
far-reaching legislation. In each instance, this was accomplished
by legislation which was effective only after the adoption of
identical legislation by the other state. See, N.J. Stat. Ann.
§32:23-23.1 (West Supp. 1999) (historical note); N.J. Stat. Ann.
§32:23-75 (West 1990) (historical note); N.J. Stat. Ann.
§32:23-77 (West 1990) (historical note); N.J. Stat. Ann.
§32:23-84 (West 1990); N.J. Stat. Ann. §32:23-85 to -86 (West
1990) (historical notes); N.J. Stat. Ann. §32:23-104 (West
1990); NJ. Stat. Ann. §32:23-105.1 (West Supp. 1999)
(historical note); N.J. Stat. Ann. §32:23-108 (West 1990); N.J.
Stat. Ann. §32:23-113 (West 1990); N.J. Stat. Ann. §32:23-114
(West 1990 & Supp 1999) (historical note); N.J. Stat. Ann.
§32:23-117 (West 1990); N.Y. Unconsol. L. §9907 (McKinney
1979) (historical note); N.Y. Unconsol. L. §9920 (McKinney
‘Supp. 1999) (historical note); N.Y. Unconsol. L. §9922
(McKinney Supp. 1999) (historical note); N.Y. Unconsol. L.
§9924 (McKinney Supp. 1999) (second version) (historical
note); N.Y. Unconsol. L. §9925 (McKinney Supp. 1999); NLY.
Unconsol. L. §9937 (McKinney 1979).
* * * fad *

In imposing the obligation to engage in interest arbitration

upon the DRPA, the Appellate Division relied on statutes

12

containing different provisions of the respective states that do
not refer to the DRPA. A fortiori, these statutes do not reflect a
concurrence by the States of New Jersey and Pennsylvania that
the DRPA’s Compact should be amended to overturn or
preempt the compact provision entrusting the DRPA
Commissioners with fixing and determining the “qualifications,
duties and compensation of DRPA employees subject to
gubernatorial review.

Thus, the decision of the Appellate Division is inconsistent
with the contractual nature of interstate compacts such as the
ones creating DRPA and the Amici Curiae, the statutory schemes
providing for concurrence in legislation imposing additional
obligations on such entities, and the subsequent legislation of
the parent states confirming the need for such concurrence.
Accordingly, this Court should review the decision of the
Appellate Division to address this matter concerning State
interaction under the Compact Clause. State ex rel. Dyer v. Sims,
supra, at 28.

Il. THE DETERMINATION OF THE APPELLATE
DIVISION THAT AN INTERSTATE COMPACT
AGENCY MAY BE REGULATED BY THE
LEGISLATION OF ONE PARENT STATE IN THE
ABSENCE OF MUTUAL CONCURRENCE BY ALL
PARENT STATES IS CONTRARY TO THE LAW
OF NEW JERSEY’S PARTNER STATES IN
CREATING PETITIONER AND THE AMICI
CURIAE.

In contrast to the New Jersey courts, the courts of New York
and Pennsylvania, New Jersey’s partner in creating the Port
Authority and the Waterfront Commission on one hand, and in
creating the DRPA on the other, have held that an interstate
compact agency is not affected by legislation of the parent
States unless those states manifest a mutual intent to affect the
agency.

13

The New York Court of Appeals has specifically rejected the
proposition that parallel public policies of compacting states
reflected in general legislation imposes obligations on an
interstate compact agency. Rather, the court recognized that to
affect a Compact Clause entity, the parent states must adopt
concurrent statutes, which, by express terms, apply to an
interstate compact agency.

In Malverty v. Waterfront Comm’n, 71 N.Y.2d 977, 529
N.Y.S.2d 67, 524 N.E.2d 421 (1988), the New York Court of
Appeals held that Article 23-A of the Correction Law of the
State of New York, prohibiting discrimination against persons
previously convicted of a criminal offense, did not apply to the
Waterfront Commission’s occupation licensing functions. In so
holding, the court relied on the fact that Article 23-A made no
reference to the Waterfront Commission, did not provide that
the Waterfront Commission Compact was amended or
supplemented and did not state that its provisions would take
effect upon the enactment of identical legislation by New
Jersey. Id., at 980, 529 N.Y.S.2d at 68, 524 N.E.2d at 422.
Significantly, the Court of Appeals found it irrelevant that New
Jersey had enacted a similar statute prohibiting discrimination
against persons convicted of crimes, /d.

The approach taken in New York is also taken in
Pennsylvania, New Jersey’s contractual partner in creating the
DRPA. In Nardi v. Delaware River Port Authority, 88 Pa.
Commw. 558, 490 A.2d 949 (1985), the court refused to apply
similar statutes of both states to the DRPA because “neither
creator state can unilaterally impose additional duties, powers or
responsibilities upon the [DRPA].” /d., at 560, 490 A.2d at
950. A unilaterally enacted Pennsylvania law provided that
DRPA was to pay a disabled police officer his or her full salary
during the full period of disability. Jd., at 561, 490 A.2d at 950.
A unilaterally enacted New Jersey statute provided that the
DRPA “may pay” a disabled employee his or her full salary
for up to one calendar year of disability. /d., at 562, 490 A.2d
at 951. Despite the fact that the statutes were, by their terms,
expressly applicable to the DRPA, the Pennsylvania court held

14

the statutes must be denied effect as unilateral legislation
restricting a power already possessed by the Authority. /d., at
565, 490 A.2d at 952. The court stated that the parent states of
the DRPA could only benefit DRPA employees if it were clear
that the legislatures of the two States intended to confer that
benefit on DRPA employees. /d., at 564 n.10, 490 A.2d at 952
n.10.

Thus, New York and Pennsylvania acknowledge the
contractual nature of an interstate compact by requiring
expressions of mutual intent by the parent states as a basis for
regulation of an interstate agency’s conduct.

In contrast, in the instant case, the Appellate Division did not
respect the contractual nature of the DRPA compact. The
Appellate Division did not base its decision on a finding that the
New Jersey and Pennsylvania had expressed a mutual intent to
alter the relationship between the DRPA and its employees.
Rather, the court relied on each state’s respective policy as to
government labor relations in general. Appendix 12a, 14a.

Thus, the approach taken by the Appellate Division is
markedly different from that of the courts of New Jersey’s
partners in creating the DRPA, the Port Authority and the
Waterfront Commission.

Ill. REVIEW OF THE APPELLATE DIVISION
DECISION IS NECESSARY TO AVOID
CONFUSION AS TO THE STATE LAW
APPLICABLE TO INTERSTATE COMPACT
AGENCIES BECAUSE OF CONFLICTS
AMONG THE COURTS OF THE STATES WHO
ARE PARTY TO THE COMPACTS CREATING
THE DRPA AND THE AMICI CURIAE WITH
RESPECT TO WHETHER MUTUAL
CONCURRENCE- IS NECESSARY FOR
INTERSTATE COMPACT AGENCIES TO BE
REGULATED BY GENERALLY APPLICABLE
STATE LAW.

15

Review by this Court of the decision of the Appellate
Division is necessary to resolve confusion as to the law
applicable to interstate compact agencies. The rule of decision
of the Appellate Division, that the law of a parent state of an
interstate compact agency applies to that agency when the other
parent state or states have adopted similar laws of general
applicability evincing the same public policy, generates
confusion as to the law applicable to DRPA, the Amici Curiae,
and other interstate compact agencies created by New Jersey
and other states.‘ This confusion has two sources. First, the rule
used to determine which state legislation applies to a New Jersey
interstate compact agency varies from state to state. Second, the
rule followed by the Appellate Division itself engenders
confusion as to the law applicable to interstate compact
agencies.

First, in the absence of review of the Appellate Division
decision by this Court, courts of different jurisdictions that have
no common reviewing court will resolve differently the question
of which legislation of the parent states of an interstate compact
agency are applicable to that agency.

Various courts with jurisdiction over the DRPA and the
Amici Curiae follow different rules of decision as to which
legislation of the parent states of an interstate compact agency
are applicable to that agency. The rule applied by the Appellate
Division, ie., that an interstate compact agency may be

* The following is a list of interstate compact agencies formed by New
Jersey and other states in addition to DRPA and the Amici Curiae: Delaware
River Joint Toll Bridge Commission (Title 32 NJ. Stat. Ann., Ch. 8 (West
1990)), Delaware River and Bay Authority (Title 32 NJ. Stat. Ann., Ch. 11E
(West 1990)), Palisades Interstate Park Commission (Title 32 NJ. Stat. Ann.,
Ch. 14 (West 1990)), Interstate Sanitation Commission (Title 32 NJ. Stat.
Ann., Ch. 19 (West 1990)), Delaware River Basin Commission (Title 32 N_J.
Stat. Ann., Ch. 20 (West 1990)), Atlantic States Marine Fisheries
Commission (Title 32 NJ. Stat. Ann., Ch. 21 (West 1990)), Tri-State
Regional Planning Commission (Title 32 NJ. Stat. Ann., Ch. 22B (West
1990)), Delaware Regional Planning Commission (Title 32 NJ. Stat. Ann.,
Ch.27 (West 1990)), Mid-Atlantic States Air Pollution Control Commission
(Title 32 N.J. Stat. Ann., Ch. 29 (West 1990)).

16

regulated by the legislation of a parent state if complementary
and parallel legislation exists in all parent states, has been
followed in New Jersey since Jnt’l Union of Operating
Engineers, Local 68 v. Delaware River and Bay Authority, 147
N.J. 433, 688 A.2d 569, cert. denied, 522 U.S. 861 (1997). As
set forth above, New York and Pennsylvania state courts reject
the rule, as have federal courts of United States. Federal courts
in New York and Pennsylvania have also rejected New Jersey’s
tule of decision. Dezaio v. Port Authority, 205 F.3d 62 (2d Cir.
2000), rejected the claim that New York Human Rights Law
applies to the Port Authority. Citing the Hess decision of this
Court, the Second Circuit ruled that the enactment of general
legislation by the Port Authority’s parent States prohibiting
employment discrimination was not sufficient to render that
legislation applicable to the Port Authority, and applying that
legislation to the Port Authority in the absense of the States’
mutual concurrence would violate the Port Authority Compact.
Id. at 65, 66. Pilla v. Delaware River Port Authority, 1999 WL
345918 (E.D. Pa. May 7, 1999), rejected a claim that
Pennsylvania’s Human Relations Act governs the actions of
DRPA because New Jersey’s Law Against Discrimination
prohibits discrimination in employment and is thus similar. The
court specifically rejected the New Jersey test that the laws of an
interstate agency’s parent states are applicable to the agency if
the state’s laws are “substantially similar”. /d., at *4.

Hence, whether the rule followed by the Appellate Division
will be applied to an interstate compact agency will vary
depending on the forum in which the suit is heard.

Moreover, although the current conflict exists across state
lines, there is the potential the conflict will exist within New
Jersey itself. Interpretation of an interstate compact is a question
of federal law. See, Cuyler v. Adams, 449 U.S. 433, 438 (1981);
Delaware River Joint Toll Bridge Comm’n v. Colburn, 310 U.S.
419, 427-28 (1940). Thus, a federal district court in New Jersey
need not follow the New Jersey state court’s resolution of the
issue. Indeed, unless such a court rendered a decision contrary
to other federal courts and that of. neighbor states, a federal

17

court in New Jersey would create a conflict between New Jersey
federal courts and New Jersey state courts on the issue*

This Court is the only court with the jurisdiction to resolve
the conflict. State ex rel, Dyer v. Sims, supra, at 29.

In the absence of resolution of the issue by this Court, New
Jersey interstate agencies, and other interested parties, have no
means of ascertaining how the laws of a single state will apply to
such agencies. A plaintiff could recover against an interstate
compact agency under state law in New Jersey, but not under
the “similar law”of the other parent state or states. King v. Port
Authority, supra, n.5, at 946.

In addition, the rule adopted in New Jersey is itself a source
of confusion. No genuine guidance is given as to how to
identify similar legislation with similar purposes that may be
applied to interstate compact agencies in the absence of mutual
legislation expressions by parent states of application to an
affected agency. In this case, the Appellate Division found
sufficient similarity to apply the two State statutes to the DRPA
despite significant differences in those statutes. Appendix, 12a-
14a. The Appellate Division held that the two States’ sharing of
a policy that public employees are entitled to engage in
collective negotiation is sufficient to render the two States’
statutes complementary and parallel so that they may regulate
the DRPA’s conduct. Jd. at 14a. However, identification of

5 In King v. Port Authority, 909 F. Supp. 938 (D.N.J. 1995), aff'd, 106
F.3d 385 (1996), a New Jersey federal court reached a decision contrary to that
of the Appellate Division. However, King was decided prior to the decision of
the New Jersey Supreme Court in /nt’l Union of Operating Engineers, Local 68
v. Delaware River and Bay Authority, supra. King relied in part on New Jersey
precedent prior to that decision, concluded that New Jersey courts would
follow the rule that legislation of the parent states of the Port Authority apply
to the agency only if the two states have concurrently adopted the legislation,
or the two states have adopted similar legislation which purport to apply to
the Port Authority, and followed that rule in holding that the New Jersey Law
Against Discrimination does not apply to the Port Authority irrespective of
the existence of a New York anti-discrimination law, the New York Human
Rights law. 909 F. Supp. at 943- 46.

18

te eee

similarity in abstract public policies cannot serve as an effective
guide to interested parties to distinguish those state laws which
apply to interstate compact agencies without the concurrence of
the partner state or states, and which do not. At a sufficiently
high level of abstraction, all states share some common policy
on public issues. For example, all tort law is intended to
compensate the injured without placing a undue burden on
potential defendants; all public employee labor law is intended
to preserve labor peace, provide services to state residents, and
deal fairly with employees. Moreover, such an approach can
cause confusion as to the contour of the law to be applied. In
Int’l Union of Operating Engineers, Local 68 v. Delaware River
and Bay Authority, supra, the New Jersey Supreme Court made
no attempt to address the mechanics of requiring the Delaware
River and Bay Authority, a Delaware-New Jersey interstate
compact agency, to negotiate with a union in the absence of an
administrative agency designated by law to resolve labor
disputes, relying on the ability of the Superior Court, Chancery
Division, “to interpret labor law,” without addressing how any
differences in Delaware and New Jersey labor law would be
resolved. Jd. at 448, 688 A.2d at 576.

Issuance of a writ of certiorari by this Court, and a
determination that, pursuant to the contractual nature of
interstate compact agencies, concurrence of an_ interstate
compact agency’s parent states is necessary for state law to be
applicable to that agency, would provide a basis for parties to
distinguish between state law to be applicable to an interstate
compact agency, and state law that is not.

Thus, review of the Appellate Division’s decision by this
Court would resolve two types of confusion as to state law to be
applicable to an interstate compact agency engendered by the
New Jersey rule.

19

CONCLUSION

For the foregoing reasons, Amici Curiae the Port Authority
and the Waterfront Commission respectfully request that the
Court grant the DRPA’s Petition for Certiorari.

Dated: New York, New York
June 5, 2000

Respectfully submitted,

HUGH H. WELSH

Counsel of Record

Attorney for Amicus Curiae

THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
One World Trade Center, 67" Floor
New York, New York 10048

(212) 435-6915

DAVID B. GREENFIELD
Counsel of Record
Director of Litigation and Legal Review
Attorney for Amicus Curiae
WATERFRONT COMMISSION OF
: NEW YORK HARBOR
39 Broadway
New York, New York 10006
(212) 742-9280

On the Brief:
Hugh H. Welsh

Arthur P. Berg
Arnold D. Kolikoff

20

———— llc OS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0980%3A6. Public record. Not legal advice.